Online Reporter
Fidelis Munyoro
Chief Court Reporter
THE Constitutional Court has dismissed the bid by banker Julius Tawona Makoni to block the enforcement of an English divorce judgment that awarded his former wife Pauline Mutsa Makoni two matrimonial homes and other assets.
In a judgment made available last week, Justice Bharat Patel, with Justice Rita Makarau and Justice Anne-Mary Gowora concurring, ruled that Makoni failed to prove violations of his constitutional rights and had no prospects of success.
“Accordingly, the court finds that the applicant was not domiciled in Zimbabwe but in the United Kingdom at the relevant time,” Justice Patel, who wrote the court judgment, said.
“Consequently, the court in England was vested with the requisite jurisdictional competence to decide the matrimonial proceedings.”
The ruling ends Makoni’s attempt to overturn a Supreme Court decision recognising and enforcing the English court order in Zimbabwe.
Dr Makoni and his former wife married in Zimbabwe in 1983 before relocating abroad. After the collapse of the marriage, Pauline Makoni filed for divorce in England in 2010.
The English court granted her the London matrimonial home, the Harare house in Chisipite and a Shawasha Hills stand, while Julius Makoni retained properties in Zimbabwe and England, offshore bank accounts and shareholdings in National Merchant Bank Zimbabwe.
The English court also cited Makoni’s failure to disclose assets during the divorce proceedings. Makoni later approached Zimbabwe’s High Court seeking a declaration that the award of the Chisipite property could not be enforced because it violated public policy and left him homeless.
The High Court agreed with him, ruling that the English court lacked jurisdiction because Makoni remained domiciled in Zimbabwe.
But the Supreme Court overturned that ruling, finding that the issue of jurisdiction had not been properly raised and that the English judgment did not offend Zimbabwean public policy.
Makoni then sought direct access to the Constitutional Court, arguing that the Supreme Court violated his rights to equal protection of the law and a fair hearing under sections 56 and 69 of the Constitution.
He argued that the Supreme Court delayed giving reasons for its judgment and wrongly blocked him from challenging the English court’s jurisdiction.
The Constitutional Court rejected those arguments. “The applicant did not suffer any prejudice that would warrant the setting aside of the court a quo’s decision,” Justice Patel said in relation to the delayed reasons.
The court held that Makoni had lived outside Zimbabwe for decades and had lost his Zimbabwean domicile under section 3(4) of the Immigration Act.
Justice Patel said Makoni “voluntarily departed from Zimbabwe, remained outside the country for well over five years, established his home and livelihood abroad, and conducted himself in a manner entirely consistent with the abandonment of his Zimbabwean domicile”.
The court also dismissed Makoni’s claim that the divorce order violated his constitutional right to a home under section 74.
“It seems almost risible to suggest that the divorce order rendered the applicant destitute, let alone homeless,” Justice Patel said.
The Constitutional Court dismissed the application and made no order as to costs.
